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Sometimes, the simplest, local example teaches the deepest, global lesson – politics and impartiality do not mix. Under the blanketing fog of politics and internet delivered news, it’s easy to become confused and actually believe you can thread the needle of politics and impartiality, but it can’t be done. It’s like trying to mix oil and water.

Having waited patiently for the polls to close (so no one can accuse me of trying to sway the election), let’s get back to basics.

In my last post, I discussed that good or problematic findings in Superior Court judgments lead to either an easy or difficult path at the Appellate Division for quasi-judicial land use decisions. To illustrate my point, I used two appellate opinions in the same land use controversy, and that same controversy contained the nugget—nugget and impartiality do not mix.

Controversial land use cases are frequently the springboard by which citizens discover their heretofore undiscovered passion—land planning and land use regulations. Being an active and engaged citizen is often the first step on the path to becoming a local politician. Many a local politician can trace his newfound political career to a land use controversy that lit the fire. All of this new found energy can lead to a better, more vibrant and engaged community—a great thing—so long as the community comes together to move forward.

In Campbell v. City of Statesville, __N.C.App.__, 2016 WL576408 (October 4, 2016), a controversy regarding a proposed truck stop had been swirling since 2012. In the four years it took the matter to reach the Statesville City Council for a hearing on whether to approve the truck stop, an active opposition leader had been elected to the Council. Unlike legislative decisions, such as rezonings, the decision that the City Council was tasked to make was quasi-judicial —a decision requiring impartial decision makers.

To no one’s surprise, Love, Inc. the truck stop owner, sought to have this new member of the City Council recused from participating. Unsurprisingly, the newly-elected member claimed he was impartial and wanted to cast a vote. Trust me, I can be impartial!

The Council put their heads together, voted to recuse the new member from participating, and then approved the truck stop. The opponents of the truck stop, fully exercising their rights, appealed the recusal decision to the Superior Court. The Superior Court affirmed the recusal, but, not deterred or persuaded, the opponents sought review at the North Carolina Court of Appeals. In its opinion, the Court of Appeals set forth the basics:

1.A member of a quasi-judicial board shall not participate in a quasi-judicial matter affecting a person’s constitutional right to an impartial decision-maker; and

2.An applicant’s constitutional rights would be violated if the decision-maker had either (a) a fixed opinion prior to the hearing that was not susceptible to change (b) financial interest in the outcome or (c) any other reasons which adversely affect the applicant’s constitutional rights to an impartial decision-maker.

The record showed that the newly-elected member of the Statesville City Council had (1) participated as an opponent to the truck stop in earlier proceedings (2) had purchased an internet domain (Nosvltruckstop.com) devoted to opposing the truck stop and promulgated a message on the website stating that “we are firmly against any action which may lead to approval of a truck stop” on the property and (3) had testified in an earlier proceeding that the truck stop would cause a decline in the value of his home.

The Court of Appeals said that it had “no choice” but to uphold recusal “to keep safe the Constitutional Due Process rights of these Applicants.” Why, no choice?

The issue is not whether the governmental official is truthful when he proclaims impartiality. Instead, the issue is whether the official’s actions demonstrate a lack of impartiality. Whenever such actions exist, recusal is necessary to protect constitutional rights and to preserve the integrity of the judicial process.

Like oil and water, politics and impartiality do not mix. And when you try– you end up with a mess.

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